Travel Ban

Two federal judges have blocked President Trump’s third try at implementing a nationwide travel ban.

The first ruling blocking the administration from enforcing the September 24th Presidential Proclamation, which restricts travel into the U.S. by foreign nationals from eight countries, came from the U.S. District Court for the District of Hawaii on Tuesday, October 17, 2017, just hours before the travel ban was scheduled to go into effect. The Hawaii District Court issued a temporary restraining order (“TRO”), basing its decision on the same analysis used by the Ninth Circuit Court of Appeals when it set aside the earlier version of the travel ban – that is, that President Trump exceeded his authority under statutory federal immigration law. As a result of the TRO, nationals from Chad, Iran, Libya, Somalia, Syria and Yemen are exempt from the travel ban, but nationals from North Korea and Venezuela remain subject to the travel restrictions set forth in the Presidential Proclamation.

In his decision, Judge Watson noted that the latest travel ban is being challenged in part because the original travel ban, issued back in January of this year, was an attempt to create a “Muslim Ban”, and President Trump “has never renounced or repudiated his calls for a ban on Muslim immigration.” He wrote that the third iteration of the ban “suffers from precisely the same maladies as its predecessor”, and that it “plainly discriminates based on nationality” in a way that is opposed to federal law.

The second ruling, issuing a preliminary injunction blocking the ban from being enforced, came from the U.S. District Court for the District of Maryland on Wednesday, October 18, 2017. In a narrower decision, Judge Chuang blocked the administration only from enforcing the travel ban against travelers from Iran, Libya, Somalia, Syria, Yemen and Chad with a “bona fide relationship” with people or institutions in the U.S. Judge Chuang found that the Presidential Proclamation violated the First Amendment’s establishment clause since it is aimed at Muslims.

In response to the injunctions, the Justice Department has stated that it plans to appeal the Hawaii District Court’s ruling. We anticipate that the Maryland District Court ruling will also be appealed. In the meantime, the TRO and preliminary injunction are intended to maintain the status quo.

We will continue to apprise clients regarding any developments as they unfold.

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On September 24, 2017, President Trump issued a new Presidential Proclamation entitled, “Presidential Proclamation Enhancing Vetting Capabilities and Process for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.” The Proclamation serves as a replacement for the travel ban implemented via Executive Order 13780, which was issued by President Trump on March 6, 2017. The travel ban components of Executive Order 13780 expired on the same date as the Proclamation’s release.

The new Proclamation applies to a total of eight nations. Five of these eight countries were previously included in Executive Order 13780 — Libya, Iran, Syria, Yemen, and Somalia. Three additional countries — Chad, Venezuela, and North Korea — have been added in the Proclamation. Notably, Iraq and Sudan have been removed from the travel ban list; however, the Proclamation explicitly recommends “additional scrutiny” for Iraqi nationals seeking permission to travel to the United States.

The Proclamation puts forth varying restrictions to each of the eight listed countries based on the U.S. government’s assessment of the security risk posed by the nationals from each of those countries. For example, the Proclamation suspends all nonimmigrant and immigrant entries of citizens from North Korea and Syria, but permits the nonimmigrant entry of Somali citizens who have undergone enhanced screening and vetting processes.

For foreign nationals already subject to the travel restrictions of Executive Order 13780 (and who do not have a bona fide relationship with a person or entity in the United States), the Proclamation’s restrictions take effect immediately. For all others, the Proclamation’s restrictions will go into effect on October 18, 2017.

As written, the restrictions set forth in the Proclamation appear to be indefinite, although, at the President’s directive, countries can be removed from the travel ban list based on the government’s review of an affected country’s security risks and a recommendation for removal by the Secretary of the Department of Homeland Security. The Proclamation also contains a carve-out to allow additional countries to be added to the list in the future.

Similar to Executive Order 13780, the Proclamation does not apply to entry into the United States for the following individuals:

any foreign national with a valid visa as of the effective date of the Proclamation;

a lawful permanent resident of the United States (green card holders);

any person paroled into the United States on or after the effective date;

any person holding a valid travel document in effect on the effective date;

any dual nationals of a country covered by the Proclamation when the individual is traveling on a passport issued by a country that is not covered by the Proclamation; and

any person on a diplomatic visa or others, such as those granted asylum or already admitted to the United States as refugees.

Finally, the Proclamation states that a case-by-case waiver may be issued by consular and border officers, where appropriate, as determined by either the Department of Homeland Security and/or the Department of State.

Not surprisingly, after the Proclamation’s release, the U.S. Supreme Court cancelled the oral argument previously scheduled for those cases seeking to challenge Executive Order 13780. Instead, the Court has directed the relevant parties to submit briefs on whether the Proclamation renders moot those cases challenging Executive Order 13780.

We will continue to report on any additional developments as they unfold.

As a result of an order issued by the U.S. District Court for the District of Hawaii last night, foreign nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen are now considered exempt from President Trump’s travel ban if they are coming to the U.S. to visit with grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins. In addition, the court held that the travel ban cannot be enforced against refugees from the six countries who have formal assurance from a resettlement agency in the U.S. for placement.

The District of Hawaii’s order greatly expands the number of people who are exempt from the travel ban which, as we reported earlier, was partially reinstated by the U.S. Supreme Court in a per curiam decision issued at the close of its term late last month. Previously, under the Supreme Court’s decision and implementing FAQs issued by the U.S. Departments of Homeland Security and State, foreign nationals from the six banned countries could only travel to the U.S. to visit with parents, spouses, siblings, fiancés, children, sons-in-law and daughters-in-law.

We will continue to report on any additional developments as they unfold.

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As Yogi Berra once said: “It’s like déjà vu all over again.”
Since mid-February, the Trump Administration promised the imminent release of a revised and improved executive order addressing travel ban and refugee admissions. The wait is over. On Monday, March 6, 2017, President Trump signed a new executive order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the new EO). The new EO revokes and replaces Executive Order 13769 (EO 13769), which President Trump signed on January 27, 2017. From the get-go, there was significant confusion surrounding the scope and implementation of EO 13769, immediately followed by numerous legal challenges. On February 9, 2017, the United States Court of Appeals for the Ninth Circuit upheld a temporary restraining order issued by a lower court, which prohibited the federal government from enforcing any restrictions contained in EO 13769.
Unlike EO 13769, which was effective immediately, the new EO allows for a ten-day grace period and will not become effective until 12:01 a.m. on Thursday, March 16, 2017.
Similar to its predecessor, the new EO imposes a 90-day “temporary pause” on the entry into the United States of nationals from the following six countries: Iran, Libya, Somalia, Sudan, Syria and Yemen. Most notably, Iraq is no longer on the list. Nevertheless, the new EO states that Iraqi nationals will be subject to additional scrutiny where they may “have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.”
In an effort to avoid the chaos that ensued following EO 13769, the new EO provides greater clarity on the scope of the travel ban. Specifically, the 90-day travel ban will apply only to those foreign nationals from the six enumerated countries of concern if:

the foreign national is not physically present in the United States on the effective date of the order (March 16, 2017);

the foreign national did not have a valid visa at 5:00 pm EST on January 27, 2017; and

the foreign national does not have a valid visa on March 16, 2017.

The new EO order is very clear that it does not apply to green card holders, those with validly issued visas, and dual citizens. In addition, the new EO allows for exceptions and individualized assessments to be made by consular and border immigration officers in certain cases.
In addition to implementing a revised travel ban, the new EO also addresses the current refugee program. Specifically, the new EO:

caps the admission of refugees to no more than 50,000 for fiscal year 2017;

directs the Secretary of State to suspend refugee travel into the United States for 120 days (beginning on March 16, 2017); and

directs the Secretary of Homeland Security to suspend decisions on applications for individuals seeking refugee status for 120 days (beginning on March 16, 2017).

Noticeably absent from the new EO is the indefinite ban on the admission of Syrian refugees that appeared in EO 13769.
While the headlining topics of the new EO remain focused on travel restrictions and refugee admissions, it is worth noting that the new EO also mandates the following:

the immediate suspension of the Visa Interview Waiver Program (but for individuals seeking a visa based upon diplomatic or diplomatic-type visa status);

a review of non-immigrant visa reciprocity agreements currently in place with other countries to ensure that such agreements are “truly reciprocal”;

the collection and disclosure of certain data to the American people pertaining to foreign nationals and their involvement in or connection to certain nefarious activities (i.e., terrorist-related offenses, acts of gender-based violence against women, etc.).

Despite the Trump Administration’s efforts to narrowly tailor this newest EO, we anticipate that there will be legal challenges filed by various stakeholders in the coming days and weeks.

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After hearing oral arguments earlier this week from attorneys representing the White House and the states of Washington and Minnesota, last night, the U.S. Court of Appeals for the Ninth Circuit unanimously upheld the U.S. District Court for the Western District of Washington’s February 3, 2017 issuance of a temporary restraining order prohibiting the federal government from enforcing President Trump’s Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (EO 13769). As you know from our previous blog posts, EO 13769 suspends the entire refugee admission program for 120 days, the Syrian refugee program indefinitely and the entry of immigrants and non-immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for an initial 90-day period. For now, as a result of the Ninth Circuit’s decision, citizens from the seven restricted countries will be able to travel to the U.S. Despite the fact that the Ninth Circuit’s ruling refuses to reinstate EO 13769’s travel ban, it is important to note that this situation will continue to be fluid, and the Trump administration will very likely seek to appeal this latest decision. As such, we continue to advise that individuals from the seven restricted countries who are presently in the U.S. forego unnecessary international travel at this time. In addition, for those individuals from the restricted countries who have valid U.S. visas, who are presently outside the U.S. and who have the intent to return to the U.S., we recommend that they consider traveling to the U.S. while there remains an opportunity to do so.